The Development of Misuse Doctrine under DMCA

 

Title
The Development of Misuse Doctrine under DMCA
Author
Dennis Yueh-Hsun Tsai, Hsin-Lan Hu
Keywords
Digital Millennium Copyright Act of 1998 (DMCA), Anti-circumvention provision, Misuse Doctrine, fair use doctrine
Abstract
Since the U.S. Digital Millennium Copyright Act of 1998 (DMCA) came into
effect, the controversial anti-circumvention provisions codified in section 1201 of
the Copyright Act immediately have became the most debatable issue in academia
and U.S. courts. As in the modern information era, facilitated by the encompassed
high technologies, reproducing and distributing illegitimate copies of copyrighted
works in the digital forms can be easily accomplished by average users, which
dramatically endanger the copyright owner’s rights and interests. However, with
the enactment of anti-circumvention provisions, copyright owners can self-help
with technological measures that effectively control access to the works protected
by copyright.
Despite limited exemptions are sanctioned under the anti-circumvention provisions,
this legal protection of technological measures as such permits proprietary
control over any kind of information, protected or not under copyright, which
granting the content provider what might arguably be considered as a “Paracopyright”
without the built-in limitations and restrictions of traditional copyright
law, such as the fair-use doctrine. As a result, the public are concerning about the in
coming World of Pay-Per-Use, and the traditional limitations on copyright, such as
the fair use may be unavoidable evaporated under such new legislation. Moreover, some recent litigation may have showed that anti-circumvention provisions have
been suspiciously utilized by some copyright owners as a means to restrain trade
and competition. In light of this situation, scholars in the U.S. began to discuss and
advocate the “Anti-circumvention Misuse Doctrine,” hoping this affirmative defense,
which evolved form the patent law, can mitigate the impact caused by anticircumvention
provisions to the copyright related markets.
Abstract Article

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